CRC/GC/2005/6
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information to children about the risks they may encounter, and establishment of measures to
provide follow-up to children particularly at risk. These measures should be regularly evaluated
to ensure their effectiveness.
(e)
Right of the child to express his or her views freely (art. 12)
25.
Pursuant to article 12 of the Convention, in determining the measures to be adopted
with regard to unaccompanied or separated children, the child’s views and wishes should
be elicited and taken into account (art. 12 (1)). To allow for a well-informed expression of
such views and wishes, it is imperative that such children are provided with all relevant
information concerning, for example, their entitlements, services available including means of
communication, the asylum process, family tracing and the situation in their country of origin
(arts. 13, 17 and 22 (2)). In guardianship, care and accommodation arrangements, and legal
representation, children’s views should also be taken into account. Such information must be
provided in a manner that is appropriate to the maturity and level of understanding of each child.
As participation is dependent on reliable communication, where necessary, interpreters should be
made available at all stages of the procedure.
(f)
Respect for the principle of non-refoulement
26.
In affording proper treatment of unaccompanied or separated children, States must fully
respect non-refoulement obligations deriving from international human rights, humanitarian and
refugee law and, in particular, must respect obligations codified in article 33 of the 1951 Refugee
Convention and in article 3 of CAT.
27.
Furthermore, in fulfilling obligations under the Convention, States shall not return a child
to a country where there are substantial grounds for believing that there is a real risk of
irreparable harm to the child, such as, but by no means limited to, those contemplated under
articles 6 and 37 of the Convention, either in the country to which removal is to be effected or in
any country to which the child may subsequently be removed. Such non-refoulement obligations
apply irrespective of whether serious violations of those rights guaranteed under the Convention
originate from non-State actors or whether such violations are directly intended or are the
indirect consequence of action or inaction. The assessment of the risk of such serious violations
should be conducted in an age and gender-sensitive manner and should, for example, take into
account the particularly serious consequences for children of the insufficient provision of food or
health services.
28.
As underage recruitment and participation in hostilities entails a high risk of irreparable
harm involving fundamental human rights, including the right to life, State obligations deriving
from article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol
to the Convention on the Rights of the Child on the involvement of children in armed conflict,
entail extraterritorial effects and States shall refrain from returning a child in any manner
whatsoever to the borders of a State where there is a real risk of underage recruitment, including
recruitment not only as a combatant but also to provide sexual services for the military or where
there is a real risk of direct or indirect participation in hostilities, either as a combatant or
through carrying out other military duties.
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